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Are on call workers entitled to National Minimum Wage?

The ongoing issue of pay entitlements for on call workers was the subject of another hearing recently as the case of Frudd v Partington came before the Employment Appeal Tribunal.

Overview

Mr and Mrs Frudd worked as warden and receptionist for the Partington Group Ltd at one of the company’s caravan parks, living on site. When the site was open for the season, they were on call from the end of their day shift (5pm) until the next day’s shift began at 8am. The period between the end of their shift and 10pm was unpaid and from 10pm to 7am they received £7.50 per emergency call out. Out of season, when the park was closed, they were on call between 5pm and 8am and were paid per emergency call out.

The Frudds said they were kept busy with multiple work-related tasks during the evenings (between the end of their shift and 10pm). They claimed the whole on call period should be considered ‘time work’ under National Minimum Wage (NMW) legislation and that the same rule should apply to the entire closed season when they were required to carry out evening security patrols.

Decision

A tribunal had previously decided that the evening period (5pm to 10pm) during the open season was time work because of the duties the Frudds were required to carry out during that time. These included showing round prospective customers and welcoming late arrivals. They were in fact working rather than waiting to work and were entitled to the National Minimum Wage during this period. During the period between 10pm and 7am they were considered by the tribunal to be on standby to work and not entitled to NMW. In the closed season the caravan park was locked by 4.30pm which was the time the Frudds finished their shift. It was therefore decided that after 4.30pm they did not do time work and were not entitled to NMW.

The Employment Appeal Tribunal upheld the decision of the Tribunal, but noted that the period between 7am and 8am, when the next day’s shift started, had not been dealt with by the original hearing and should go back to the same tribunal for consideration.

Comment

This case shows that there are times when on call work should be treated differently for National Minimum Wage purposes, particularly if the duties vary at different points during the on call period. In the evening the appeal tribunal considered that the Frudds were carrying out time work because their duties constituted active work. The hearing agreed with the original tribunal that for the rest of the overnight period, payments should only be made if the Frudds were called out. The appeal concerning security patrols during the closed season was rejected as the appeal tribunal ruled that one patrol did not make the whole period eligible for time work.

This EAT hearing follows numerous other cases involving on call payments, which have largely involved claimants in the care sector where overnight shifts for fixed fees are common. These have typically considered whether care staff who work “sleep-in” shifts are entitled to minimum wage for the hours they are on duty or are they on call rather than at work? In the case of Royal Mencap Society and Claire Tomlinson-Blake, the Court of Appeal ruled that there was no obligation to pay minimum wage, in view of the fact that the care workers were only “making themselves available for work”. However, the Supreme Court has granted permission for an appeal and we await the outcome with interest.